Case: 14-40295 Document: 00512921019 Page: 1 Date Filed: 01/30/2015
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-40295
Summary Calendar
United States Court of Appeals
Fifth Circuit
FILED
January 30, 2015
UNITED STATES OF AMERICA,
Lyle W. Cayce
Clerk
Plaintiff - Appellee
v.
ELEAZAR GARZA-PEREZ,
Defendant -Appellant
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 7:13-CR-475-1
Before JOLLY, BARKSDALE, and OWEN, Circuit Judges.
PER CURIAM: *
Eleazar Garza-Perez challenges the 60-month sentence imposed
following his guilty-plea conviction for possession, with intent to distribute,
171 kilograms of marijuana, in violation of 18 U.S.C. § 2 and 21 U.S.C.
§§ 841(a)(1), (b)(1). Federal Border Patrol Agents arrested Garza and his
brother for procuring and transporting the marijuana to a farm in McAllen,
Texas. Garza asserts the court erred in denying his motion for a sentence
* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
Case: 14-40295 Document: 00512921019 Page: 2 Date Filed: 01/30/2015
No. 14-40295
reduction under the safety-valve provision in Sentencing Guidelines §§ 5C1.2
(permitting district court to impose sentence below statutory minimum) and
2D1.1(b)(17) (decrease calculation by two levels for satisfaction of safety-valve
provision). He contends he was truthful with the court in claiming he had not
sought his brother’s assistance in transporting the drugs.
Although post-Booker, the Guidelines are advisory only, and a properly
preserved objection to an ultimate sentence is reviewed for reasonableness
under an abuse-of-discretion standard, the district court must still properly
calculate the advisory Guidelines-sentencing range for use in deciding on the
sentence to impose. Gall v. United States, 552 U.S. 38, 51 (2007). In that
respect, for issues preserved in district court, its application of the Guidelines
is reviewed de novo; its factual findings, only for clear error. E.g., United States
v. Cisneros-Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008). The decision whether
to apply the safety-valve provision is reviewed for clear error. United States v.
McCrimmon, 443 F.3d 454, 457 (5th Cir. 2006).
The safety-valve provision, in relevant part, requires defendant, at or
before sentencing, to provide the Government with all the information and
evidence he has concerning the offense. U.S.S.G. § 5C1.2(a)(5). After
considering Garza’s assertions, the court found his statements were not
credible. For obvious reasons, that finding is entitled to deference. E.g., United
States v. Juarez-Duarte, 513 F.3d 204, 208 (5th Cir. 2008). And, because that
finding is plausible in view of the record as a whole, it is not clearly erroneous.
E.g., United States v. Ruiz, 621 F.3d 390, 396 (5th Cir. 2010) (citation omitted).
AFFIRMED.
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